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For only a week after parliament in Kenya threw out a motion by human rights lawyer and opposition member of parliament, Mr. Kiraitu Murungi, to outlaw capital punishment, these reports have again forcefully re-directed debate onto the issue of the suitability of judicial execution as a deterrent to violent crimes and other capital offences.
With eyes firmly focussed on events in the US, the question foremost in the minds of many in Kenya now is: is the fact that the US continues to entertain judicial execution serving to steel the resolve of proponents of capital punishment or, will the outrage at these executions compel proponents of judicial execution to recoil?
At a cursory glance, opponents of capital punishment have, until now, appeared to be gaining ground. In the last few years, Mauritius, Moldavia, South Africa and Spain have abolished the death penalty in whole or in part. The new constitution of the Ivory Coast, which is to be submitted for popular approval next year, includes a clause on the abolition of the death penalty. Last November, the African Commission on Human and People's Rights passed a resolution urging member states to envisage a moratorium on the death penalty.
But that is just about it. Elsewhere, judicial executions continue unabated.
A documented total of close to 10,000 prisoners remain under the sentence of death in 31 countries including Iran, Japan, China, Nigeria, Saudi Arabia, Ukraine, Kenya, Russia as well as the United States. Hailed the world over as a champion of the right to life and democracy, the executions in that country, says Amnesty International, has had an influence on other countries. Apparently looking at the US as an example, both Guatemala and the Philippines adopted death by lethal injection of those on death row after officials visited the US to witness how it was done.
In Africa, the prospects at least for those opposed to capital punishment, remain frightening. Not too long ago the military regime in Gambia re-instated the death penalty which had been abolished two years earlier by the country's deposed President, Dawda Jawara, ostensibly because a government statement said it would check an apparent upsurge in violent murders.
Shortly after this, Zimbabwe's mass circulation daily Herald carried a story about the hanging of a condemned prisoner, Morgan Dikwi, after he lost his appeal in Zimbabwe's Supreme Court against a 1992-death sentence. Of particular significance was the fact that this was Zimbabwe's first execution of a condemned prisoner since 1988.
In Kenya, says Assistant Minister Elijah Sumbeiywo, there have been no executions of people facing death sentences in the last 13 years. That was when Senior Private Hezekiah Raballah Ochuka, Pancras Oteyo Okumu and other ringleaders of the foiled 1982 coup mounted by sections of the Kenya Airforce were executed.
According to Sumbeiywo, all the 280 executions out of a total of 3,584 death sentences for murder, treason or robbery with violence took place between 1963 and 1987. Another 135 prisoners have benefited from the presidential prerogative of mercy and their capital punishment commuted to life imprisonment.
After the 13-year hiatus, however, fears are that Kenya too might be eager to go Zimbabwe's way.
It was in 1996 that reports first began to do the rounds that Kenyan authorities had again given a go-ahead for prisoners on death row to be executed.
First, to sound the alarm was the chairman of the Citizens Committee for the Protection of Prisoners (CCPP), lawyer Rumba Kinuthia, a former University of Nairobi student leader and human rights activist who, in an urgent letter to Dr. Martin Hill of Amnesty International, said he had reliable information that prison authorities had received a go-ahead from the government to execute some or all of the 57 condemned prisoners who were at the time being held in Condemn Block A at Kenya's biggest prison, Kamiti Maximum Security prison.
Kinuthia said that he understood that the executions had been scheduled to begin soon after the instructions were issued and that the officer in charge of the gallows room, where a condemned person is blindfolded and released through a trap door under his feet to hurtle to his death 30 feet below through the snapping of his noosed neck, had been extra busy in the past two weeks.
Kinuthia's letter indicated that the officer, Senior Sergeant Julius Stalidawai, had openly insulted and threatened the death-row inmates telling then again and again: "This time you will not escape."
Two executioners, the letter went on, had also been frequenting the gallows and testing the efficacy of the death machines, which had not been used for several years due to international pressure on the Kenyan government to outlaw the death sentence. Added the letter: "The 57 inmates are in a state of obsession, fright and panic." As chairman of the CCPP, Kinuthia said, he was therefore writing to request Hill to organise a massive and extremely urgent appeal to the Kenyan government to save these people's lives, some of whom he felt were without doubt victims of a flawed judicial system.
Commenting on the contents of his letter, Kinuthia, a former political prisoner, recalled how he had occasions to meet with some of those condemned to death in Condemn Block G. Theirs, he intimated, was a traumatising experience indeed. Thanks to his letter, Kinuthia said, and the subsequent appeals which "literally bombarded the Attorney-General by the sack-loads from all corners of the world", nobody had been executed.
Early this year, however, the matter again arose in parliament, prompting assistant minister Sumbeiywo's reassurance that no executions of condemned prisoners had taken place.
Kenya meanwhile remains deeply polarised between those for and those against capital punishment. According to Mr Ahmed Khalif, secretary general of the Supreme Council of Kenya Muslims (SUPKEM), the application of the death penalty is justified if after a proper trial, an accused person is convicted. "We the Muslims hold the Koranic view that life is ordained by God and anyone who commits murder must be punished by death".
His views differ radically from those of Usha Shah, convenor of the women's wing of the Hindu Council and the council's first ever woman chairperson, who says the Hindu are completely opposed to the death penalty. "The Hindu religion," she says, "believes in non-violence". She says the Hindus believe that the need to punish a murderer with death does not arise since, according to her religion, whoever commits a crime pays for it here on earth or in the afterlife. The Hindu firmly believe in the law of Karma, the thrust of which is that if one does good or evil, it must always come back. Man therefore, cannot therefore cast upon himself the task of being judge and jury of the deeds of other mortals. "I am the doer and enjoyer of all my deeds," says Shah.
The head of the Catholic Church in Kenya, Archbishop Ndingi Mwana'Nzeki is also of the strong view that capital punishment should be abolished because, he says, "nobody has a right to take any other person's life." Ndingi contends that the death penalty is itself not in itself an act of self-defence against an immediate threat to life but rather the calculated killing of a criminal. Ndingi's views are shared by most Christians who hold the view that capital punishment is an extreme physical and mental assault, causes unquantifiable mental suffering to a prisoner, is irrevocable, and is not a deterrent to violent crimes.
Renowned Kenyan human rights lawyer Pheroze Nowrojee says the debate on the suitability of capital punishment is so subjective that it does not really matter whether one is a lawyer as he is or not. "Punishment, he says, "is not the real deterrent to violent crime. Capital punishment has never been a deterrent. The true deterrent lies in the chances of getting caught. If we increase the chances of detecting crime, then we can succeed in reducing crime. But making punishment heavier has never been a real deterrent."
On its part, the Kenyan government justifies the use of the death penalty on the basis of law. "International Law" it insisted in response to recent criticisms from the Kenya Human Rights Commission, "knows not any legal norm or custom that stipulates that legitimate administration of the death penalty after the due process of law has been followed amounts to a breach of human rights. The only requirement is that an accused person is afforded a fair trial and the due process of the law is followed. If after a proper trial an accused person is convicted, the application of the death penalty is justified."
In the meantime, the big debate rages on.
This is not the first time that the issue is being raised in parliament. Two years ago, Murungi again raised a private member's motion calling for the abolition of the death penalty on the grounds that it was "archaic, inhuman, and unjustifiable in the present world". During debate on the motion, many of Murungi's colleagues opposed the abolition of the death penalty saying this would result in an upsurge of violent criminal activity. Prior to this, the ruling Kenya African National Union (KANU) parliamentary group had been summoned by President Daniel arap Moi and instructed to opposed the motion.
However, while many Kenyan politicians appear keen to retain capital punishment the majority of the judicial officers who actually pass the sentences are not. A few years ago, Kenya's Chief Justice at the time, Mr Justice Fred Kwasi Apaloo expressed misgivings about the death penalty and urged lawmakers to consider repealing it. A high court judge, Mr Justice Mbogholi Msagha, has also on more than one occasion called for the removal of the death penalty from the statute books saying it offended the country's constitution which granted every citizen the right to life.
Most other opponents of the death penalty in Kenya premise their arguments on ethical parameters, arguing that since the aim of all forms of punishment is either punitive, retributive, corrective or deterrence, the execution of criminals does not serve any of these purposes. Life, they argue is an inherent human right possessed by all human beings and nobody, therefore, can claim to have the right to end it.
In Kenya, the death sentence is mandatory for treason, murder, robbery with violence or attempted robbery with violence and for the administration of an unlawful oath to commit a capital offence. Under Kenyan law, the death penalty may not be imposed on anyone who is under 18 years at the time of the offence, a pregnant woman or an insane person. The police can detain without charge, for up to 14 days, people suspected of having committed or being about to commit an offence punishable by death. Bail cannot be given for any crime which carries the death penalty.
Defendants charged with murder or treason are tried in the high court and, if convicted, have a right to appeal at the court of appeal. Courts martial, on the other hand, try members of the armed forces charged with treason. They too, have a right of appeal to the high court. Since the colonial days, the practice has been for people sentenced to death to be hanged and buried at the Kamiti Maximum prison on the outskirts of the capital city, Nairobi. Those condemned to the gallows live in a block of cells adjacent to the execution chambers.
After the initial death sentence is handed down, the convict is given one or two more chances before the case is brought before the advisory committee of the prerogative of mercy, which normally comprises the Vice President, the Attorney General and the Minister for Home Affairs who is also the Minister in charge of prisons. The committee also includes a renowned clergyman, at least one high court judge and the chairman of the Medical Practitioners and Dentists Association. It is incumbent upon this committee to recommend to the president which cases should be given clemency, be it pardoning or commuting of the sentence. This entire process, from the initial sentence, can take up to five years.
Once the appeals process has been exhausted, cases of all prisoners sentenced to death are automatically passed to the President under section 27 of the Constitution of Kenya, which provides for the prerogative of mercy. Although no known executions have taken place in the country since 1987, the death sentence remains firmly in the statute books and today more than 1,000 are currently under the death sentence.
It is in Condemn Block G that those condemned to death await the reply to their plea for clemency from the President.
The convicts whose pleas are turned down are moved to Condemn Block A to await execution. Here they are totally locked in and have absolutely no access to the outside world.
"They are desperate and lonely, although they are reputedly well fed," recalls the chairman of the Citizen Committee for the Protection of the Prisoner, lawyer Rumba Kinuthia, who has had occasion to interview one or two such prisoners. There are numerous cases of attempted suicide among prisoners condemned to death. Kinuthia recalls one near-successful attempt in Condemn Block G, where warders had to rush in to thwart the convict's efforts.
Before the hanging is executed, the President must sign a death warrant, which also states the place and time of execution and the place of burial or cremation of the body.
Normally, the executions are carried out exactly seven days after the President signs the death warrant. In those seven days, close relatives of the condemned person are informed about his impending fate and are allowed to visit him and collect his personal effects. Where the condemned person has no will, the prison's social welfare officer facilitates the making of one and a clergyman of his faith is allowed to provide him with spiritual nourishment in his last days on earth. As the dreadful day approaches, the convict is free to request and be served with food of his choice.
Normally the executions are carried out between 4am and 5am when the hangmen summons the convict, ties his hands behind his back and escorst him to the wooden execution platform. Once there, his ankles are bound and a hood placed over his head. Finally, the hangman tosses the rope over his victim's neck and a lever is simultaneously pulled to open the huge platform trap down from under the feet of the convict. As he bolts downwards, the rope jerks him to a stop at the end of its length and instantly snaps his neck. The execution takes place in the presence of a doctor, a priest, and the Commissioner of the prison or his deputy. Before the hanging, the doctor must certify that the convict is in sound medical condition. The hanged convicts are buried in single, unmarked graves inside Kamiti prison unlike in the colonial days, when convicts were buried in mass graves.
ROBERT ODUOL - works with the Nairobi, Kenya-based Central Africa News Agency. Previously served as Editor of Trade and Industry Magazine and senior writer for the Economic Review and Weekly Review newsmagazines. This is his third article for G21: The World's Magazine.